Richard Cornforth-Workbook

7/28/2019 Richard Cornforth-Workbook

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AUTHORS NOTE

My intention is to inspire users of the book to learn about our legal system and

proceed to fight their own legal wars. Although the book is a first step toward

understanding our legal system and how to work within it, I advise readers to use the

book as a study guide and collaterally research such valuable materials as the local state

and federal rules guides. I have often been asked, Would you be mad if we used your

material? My answer - Ill be mad if you dont! I do, however, caution that before

anyone submits any pleading in any proceeding it is not merely wise but MANDATORY

that the local rules are checked. For example, some jurisdictions require a notice before

filing pleadings and all jurisdictions that I am aware of require that a copy of your

pleading be certified to the other side.

- Richard Luke Cornforth


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TABLE OF CONTENTS

SECTION ONE: Secrets of the legal industry 4We have a two-tiered court system 4

We have a common law court system 6The real law is found in the annotated statutes 9There are two types of jurisdiction relating to people: personal

jurisdiction and subject matter jurisdiction 16Attorneys cant testify. Statements of counsel in brief or in oral argumentare not facts before the court 17

SECTION TWO: The law of voids 18Everything you always wanted to know about void judgments, butwere afraid to ask 18Reasons why subject matter jurisdiction CAN be lost 23

Summary of the principles of the doctrine or law of voids 24Sample petitions to vacate 26

SECTON THREE: The Fair Debt Collections Practices Act 34Overview of the Act 34

Note and contract law 35Phone scripts 39Early letter to collector 40Late letter to collector 41Sample of suit for damages under the Act 45

SECTION FOUR: Civil litigation 47Is your lawsuit really frivolous? 47Sample case 48Have you really failed to state a claim upon which relief can be granted? 55Sample case 56

SECTION FIVE: Appeals 62Sample state appeal 66Sample federal appeal 90

SECTION SIX: Dealing with administrative authority 97Sample suit for judicial review of administrative action 98Priddy versus City of Tulsa 100

SECTION SEVEN: Civil rights actions 112Malicious prosecution 113Denial of remedy 118False imprisonment / imprisonment for contempt 123


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SECTION EIGHT: Attacking the internal revenue service 132Remedies 132Would you believe that a RACS 006 is not an assessment? 132Sample of suit for violation of collection practices guidelines 135

Sample suit for relief of conviction for evasion and / or willful failure 138Sample suit for removal of trespass by the IRS 162

SECTION NINE: RICO - the ultimate weapon 167Overview of civil rico 167Sample civil RICO SUIT 172

SECTION TEN: Strategies 187Supremacy and equal protection of the laws 187Affidavits 189Objections 190

Notice of lis pendens 191Preliminary injunction 193Writ of mandamus 195Writ of prohibition 195Deposing them 195Being deposed 195Interrogatories 195Admissions 195Bankruptcy, using the law of voids under 11 USC 9014 196Defending against a motion for summary judgment 204Defending against a motion to dismiss 206Quo Warranto 209Complaint against a federal judge 209Using a declaration 210

SECTION ELEVEN: Resources 211

SECTION TWELVE: The Political Solution 211

APPENDIXApplication for a taxpayers assistance order


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SECTION ONE: INTRODUCTION, Secrets of the legal industry

We have a two-tiered court system. In our system, we have supreme courts and

courts of inferior jurisdiction. When we were children and learning in school, we were

instructed that there are three branches of government, the legislative, the administrative,and the judicial. What we were not told was that courts of inferior jurisdiction, regardless

of their claimed origin, such as The United States Constitution Article Three, Section

One, cannot be presumed to act judicially. Most courts of inferior or limited jurisdiction

have no inherent jurisdictional authority, no inherent judicial power whatsoever. Courts

of limited jurisdiction are empowered by one source: SUFFICIENCY OF

PLEADINGS - meaning one of the parties appearing before the inferior court must

literally give the court its judicial power by completing jurisdiction. Federal courts

are courts of limited jurisdiction, and may only exercise jurisdiction when

specifically authorized to do so. A party seeking to invoke a federal court's

jurisdiction bears the burden of establishing that such jurisdiction exists. See Scott

v. Sandford, 60 U.S. 393 (U.S. 01/02/1856); SECURITY TRUST COMPANY v.

BLACK RIVER NATIONAL BANK (12/01/02) 187 U.S. 211, 47 L. Ed. 147, 23 S. Ct.

52; McNutt v. General Motors Acceptance Corp. , 298 U.S. 178, 189 (1936); HAGUE v.

COMMITTEE FOR INDUSTRIAL ORGANIZATION ET AL. (06/05/39) 307 U.S. 496,

59 S. Ct. 954, 83 L. Ed. 1423; UNITED STATES v. NEW YORK TELEPHONE CO.(12/07/77) 434 U.S. 159, 98 S. Ct. 364, 54 L. Ed. 2d 376; CHAPMAN v. HOUSTON

WELFARE RIGHTS ORGANIZATION ET AL. (05/14/79) 441 U.S. 600, 99 S. Ct.

1905, 60 L. Ed. 2d 508; CANNON v. UNIVERSITY CHICAGO ET AL. (05/14/79) 441

U.S. 677, 99 S. Ct. 1946, 60 L. Ed. 2d 560; PATSY v. BOARD REGENTS STATE

FLORIDA (06/21/82) 457 U.S. 496, 102 S. Ct. 2557, 73 L. Ed. 2d 172; MERRILL

LYNCH v. CURRAN ET AL. (05/03/82) 456 U.S. 353, 102 S. Ct. 1825, 72 L. Ed. 2d

182, 50 U.S.L.W. 4457; INSURANCE CORPORATION IRELAND v. COMPAGNIE

DES BAUXITES DE GUINEE (06/01/82) 456 U . S . 694 , 102 S. Ct. 2099, 72 L. Ed. 2d

492, 50 U.S.L.W. 4553; MATT T. KOKKONEN v. GUARDIAN LIFE INSURANCE

COMPANY AMERICA (05/16/94) 128 L. Ed. 2d 391, 62 U.S.L.W. 4313.

OKLAHOMA MAY SAY IT BEST! = We recognize the district court, in our


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unified court system, is a court of general jurisdiction and is constitutionally

endowed with "unlimited original jurisdiction of all justiciable matters, except as

otherwise provided in this Article," Article 7, Section 7, Oklahoma Constitution.

However, this "unlimited original jurisdiction of all justiciable matters" can only be

exercised by the district court through the filing of pleadings which are sufficient to

invoke the power of the court to act. The requirement for a verified information to

confer subject matter jurisdiction on the court and empower the court to act has been

applied to both courts of record and not of record. We determine that the

mandatory language of 22 O.S. 1981 303 [22-303], requiring endorsement by the

district attorney or assistant district attorney and verification of the information is

more than merely a "guaranty of good faith" of the prosecution. It, in fact, is

required to vest the district court with subject matter jurisdiction, which in turn

empowers the court to act . Only by the filing of an information which complies with

this mandatory statutory requirement can the district court obtain subject matter

jurisdiction in the first instance which then empowers the court to adjudicate the

matters presented to it . We therefore hold that the judgments and sentences in the

District Court of Tulsa County must be REVERSED AND REMANDED without a bar to

further action in the district court in that the unverified information failed to confer

subject matter jurisdiction on the district court in the first instance, Chandler v. State, 96

Okl.Cr. 344, 255 P.2d 299, 301-2 (1953); Smith v. State, 152 P.2d 279, 281 (Okl.Cr.

1944); City of Tulsa, 554 P.2d at 103; Nickell v. State, 562 P.2d 151 (Okl.Cr. 1977);

Short v. State, 634 P.2d 755, 757 (Okl.Cr. 1981); Byrne v. State, 620 P.2d 1328 (Okl.Cr.

1980); Laughton v. State, 558 P.2d 1171 (Okl.Cr. 1977); and Buis v. State, 792 P.2d

427, 1990 OK CR 28 (Okla.Crim.App. 05/14/1990). To invoke the jurisdiction of the

court under the declaratory judgments act there must be an actual, existing justiciable

controversy between parties having opposing interests, which interests must be direct and

substantial, and involve an actual, as distinguished from a possible, potential or

contingent dispute. Gordon v. Followell , 1964 OK 74, 391 P.2d 242. To be "justiciable,"

the claim must be suitable for judicial inquiry, which requires determining whether the

controversy (a) is definite and concrete, (b) concerns legal relations among parties with

adverse interests and (c) is real and substantial so as to be capable of a decision granting


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or denying specific relief of a conclusive nature." Dank v. Benson , 2000 OK 40, 5 P.3d

1088, 1091. See also, 12 O.S. 1651. See also, Easterwood v. Choctaw County District

Attorney, 45 P.3d 436, 2002 OK CIV APP 41 (Okla. App. 01/11/2002). Another well

spoken authority: On the date specified in the notice of hearing, all parties may appear

and be heard on all matters properly before the court, which must be determined prior to

the entry of the order of taking, including the jurisdiction of the court, the sufficiency of

pleadings , whether the petitioner is properly exercising its delegated authority, and the

amount to be deposited for the property sought to be appropriated. See CITY

LAKELAND v. WILLIAM O. BUNCH ET AL. (04/03/74) 293 So. 2d 66.

I hope by now, everyone understands that a court DOES NOT GET ITS

JURISDICTIONAL AUTHORITY FROM THE FLAG THAT IS POSTED!!!!

Courts of inferior or limited jurisdiction get their authority from ONE SOURCE

AND ONLY ONE SOURCE = pleadings sufficient to empower the court to act,

meaning one of the parties must give the court its power to act by way of written

and oral argument (the parties NOT THEIR ATTORNEYS MUST DO THIS!).

We have a common law court system. There are two basic forms of law in the world -

code law and common law. Code law means that the law as written is the law.

Unfortunately, code has to be continually expanded by legislative authority. The so

called Internal Revenue Service Code is an attempt to impose code law over common

law - the results are disasters! Common law means that you cant read any statute, rule,

or law, for that matter, any constitutional article and tell what it means on its face. A

common law system means that what any statute, rule, law, or constitutional law means is

determined by the highest court of competent jurisdiction in their most recent ruling. In

America, only Louisiana uses a code law system.

DEVELOPMENT OF THE COMMON-LAW COURT SYSTEM IN AMERICA

The Supreme Court is a common-law court that operates in a system that has little


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federal common law. Yet, its common-law nature is important to the Courts

functioning as a constitutional arbiter . Common law is a system of law made not by

legislatures but by courts and judges. Although often called unwritten law, the phrase

actually refers only to the source of law, which is presumed to be universal custom,

reason, or natural law. In common law, the substance of the law is to be found in

the published reports of court decisions . Two points are critical to the workings of a

common-law system. First, law emerges only through litigation about actual

controversies. Second, precedent guides courts: holdings in a case must follow

previous rulings, if the facts are identical . This is the principle of stare decisis . But

subsequent cases can also change the law. If the facts of a new case are distinguishable,

a new rule can emerge . And sometimes, if the grounds of a precedent are seen to be

wrong, the holding can be overruled by later courts.When the Constitution was drafted, American society was infused with common-

law ideas. Common law originated in the medieval English royal courts. By 1776, it had

been received in all the British colonies. The revolutionary experience heightened

Americans adherence to common law, especially to the idea that the principle embodied

in the common law controlled the government. While there is no express provision in the

Constitution stating that the Supreme Court is a common-law court, Article III divides

the jurisdiction of federal courts into law (meaning common law ), equity, and

admiralty. The Philadelphia Convention of 1787 rejected language that would limit

federal jurisdiction to matter controlled by congressional statute. Thus, the

Constitution implicitly recognizes the Supreme Court as a common-law court, as

does the Seventh Amendment in the Bill of Rights.

The Constitution left open the question whether there was a federal common law.

The Supreme Court first held, in United State v. Hudson and Goodwin, 1812 , that there is

no federal common law of crimes, and then, in Wheaton v. Peters (1834), that there is no

federal civil common law. But in Swift v. Tyson (1842), the Court permitted lower

federal courts to decide commercial law questions on the basis of the general principles

and doctrines of commercial jurisprudence, thus opening the door to later growth of a

general federal common law. A century later, the Court put a stop to this development in

Erie Railroad v. Thompkins (1938) by declaring Swift unconstitutional. (Yet, at the same


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time, it acknowledged the existence of bodies of specialized federal common law, such

as, for example, it refuses to render advisory opinions, waiting instead for litigants to

bring issues before it.) Precedent shapes the Courts power of judicial review;

because of it, any ruling of the Court is a precedent for similar cases. Thus, if one

states law is held unconstitutional, all similar statutes in other states are

unconstitutional , a point the Court was obliged to underscore forcibly in Cooper v.

Aaron (1958) in the face of intransigent southern resistance to the Courts holding in

Brown v. Board of Education (1954).

The Fourteenth Amendment

Under Article I, Section 2 of the Constitution, a slave had been counted as three-

fifths of a person for purposes of representation. Southern states expected a substantial

increase in their representation in the House of Representatives after the Civil War. TheUnion, having won the war, might lose the peace. Before the war, southern states

suppressed fundamental rights, including free speech and press in order to protect the

institution of slavery. Though the Supreme Court had ruled in 1833, in Baron v.

Baltimore, that guarantees of the Bill of Rights did not limit the states, many Republicans

thought state officials were obligated to respect those guarantees. The Fourteenth

Amendment prohibited states from abridging privileges and immunities of citizens of the

United States and from depriving persons of due process of law or equal protection of the

laws. Early interpretations of the Fourteenth Amendment drastically curtailed the

protection afforded by the amendment. Decisions such as Twinin v. New Jersey in 1908

and Gitlow v. New York in 1925 expanded the Fourteenth Amendment to the Bill of

Rights meaning that Federal protections applied to protect the individual from trespass on

God-given rights by states. Supreme Court decisions have also brought offense to rights

done under color of law by private persons within reach of Federal protection.

Source - The Oxford Companion To The Supreme Court of The United States

The essence of the Fourteenth Amendment in a nut shell

The Constitution of the United States was written to protect us from intrusion on

our God Given Rights by the Federal Government. The Fourteenth Amendment was

necessary to protect us from intrusion on our God Given Rights by state governments,


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political subunits, and individuals who act under color of law.

WORKBOOK ASSIGNMENT: Define color of law.

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What law is found at 5 USC 3331, and explain the significance of that law.

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UNITED STATES CONSITUTIONAL AMENDMENT VII = In suits atcommon law, where the value in controversy shall exceed twenty dollars, the right of

trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined

in any court of the United States, than according to the rules of the common law.

Federal courts, in adopting rules, are not free to extend the judicial power of the

United States described in Article III of the Constitution. Willy v. Coastal Corp., 503 U.S.

131, 135 (1992). Rule 28A(i) allows courts to ignore this limit. If we mark an opinion as

unpublished, Rule 28A(i) provides that is not precedent. Though prior decisions may be

well-considered and directly on point, Rule 28A(i) allows us to depart from the law set

out in such prior decisions without any reason to differentiate the cases. This discretion

is completely inconsistent with the doctrine of precedent; even in constitutional cases,

courts have always required a departure from precedent to be supported by some

special justification. United States v. International Business Machines Corp., 517 U.S.

843, 856 (1996), quoting Payne v. Tennessee, 501 U.S. 808, 842 (1991) (Souter, J.,

concurring). Rule 28A(i) expands the judicial power beyond the limits set by article III

by allowing us complete discretion to determine which judicial decisions will bind us and

which will not. Insofar as it limits the precedential effect of our prior decisions, the Rule

is therefore unconstitutional. Anastasoff v. United States of America 223 F.3d 898 (8 th

Cir. 2000).


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The real law is found in the annotated statutes. Partial sample follows:

Example of annotated law

UNITED STATES CODE ANNOTATEDTITLE 15. COMMERCE AND TRADE

CHAPTER 41 - CONSUMER CREDIT PROTECTIONSUBCHAPTER V - DEBT COLLECTION PRACTICES

Copr. West Group 2001. No claim to Orig. U.S. Govt. Works.

Current through P.L. 107-48, approved 10-12-01

1692a. Definitions

As used in this subchapter--

(1) The term "Commission" means the Federal Trade Commission.

(2) The term "communication" means the conveying of information regarding a debt directly or indirectly

to any person through any medium.

(3) The term "consumer" means any natural person obligated or allegedly obligated to pay any debt.

(4) The term "creditor" means any person who offers or extends credit creating a debt or to whom a debt isowed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.

(5) The term "debt" means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transactionare primarily for personal, family, or household purposes, whether or not such obligation has been reducedto judgment.

(6) The term "debt collector" means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularlycollects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or dueanother. Notwithstanding the exclusion provided by clause (F) of the last sentence of this paragraph, theterm includes any creditor who, in the process of collecting his own debts, uses any name other than hisown which would indicate that a third person is collecting or attempting to collect such debts. For the

purpose of section 1692f(6) of this title, such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests. The term does not include-- (A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for suchcreditor;

(B) any person while acting as a debt collector for another person, both of whom are related by commonownership or affiliated by corporate control, if the person acting as a debt collector does so only for personsto whom it is so related or affiliated and if the principal business of such person is not the collection of debts;

(C) any officer or employee of the United States or any State to the extent that collecting or attempting tocollect any debt is in the performance of his official duties;

(D) any person while serving or attempting to serve legal process on any other person in connection withthe judicial enforcement of any debt;


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(E) any nonprofit organization which, at the request of consumers, performs bona fide consumer creditcounseling and assists consumers in the liquidation of their debts by receiving payments from suchconsumers and distributing such amounts to creditors; and

(F) any person collecting or attempting to collect any debt owed or due or asserted to be owed or dueanother to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrowarrangement; (ii) concerns a debt which was originated by such person; (iii) concerns a debt which was notin default at the time it was obtained by such person; or (iv) concerns a debt obtained by such person as asecured party in a commercial credit transaction involving the creditor.

(7) The term "location information" means a consumer's place of abode and his telephone number at such place, or his place of employment.

(8) The term "State" means any State, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any political subdivision of any of the foregoing.

CREDIT(S)

1997 Main Volume

(Pub.L. 90-321, Title VIII, 803, as added Pub.L. 95-109 ,, Sept. 20, 1977, 91 Stat. 875, and amendedPub.L. 99-361 ,, July 9, 1986, 100 Stat. 768.)

HISTORICAL AND STATUTORY NOTES

Revision Notes and Legislative Reports

1968 Acts. House Report No. 1040 and Conference Report No. 1397, see 1968 U.S. Code Cong. and Adm. News, p. 1962.

1977 Acts. Senate Report No. 95-382, see 1977 U.S. Code Cong. and Adm. News, p. 1695.

1986 Acts. House Report No. 99-405, see 1986 U.S. Code Cong. and Adm. News, p. 1752.

Amendments

1986 Amendments. Par. (6). Pub.L. 99-361 in provision preceding subpar. (A) substituted "clause (F)" for "clause (G)", in subpar. (E) inserted "and" after "creditor," struck out subpar. (F), which excluded from theterm "debt collector" any attorney-at-law collecting a debt as an attorney on behalf of and in the name of aclient, and redesignated subpar. (G) as (F).

CROSS REFERENCES

Private counsel as debt collector, see 31 U.S.C.A. 3718 .

AMERICAN LAW REPORTS

Validity, construction, and application of state statutes prohibiting abusive or coercive debt collection practices. 87 ALR 3d 786 .

What constitutes "debt" for purposes of Fair Debt Collection Practices Act ( 15U.S.C.A. 1692A(5) ). 159ALR Fed 121 .

What constitutes "debt" and "debt collector" for purposes of Fair Debt Collection Practices Act ( 15


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U.S.C.A. 1692(a)(5), (6) . 62 ALR Fed 552 .

LIBRARY REFERENCES

Administrative Law

Fair Debt Collection Practices Act, scope and coverage, see West's Federal Administrative Practice 3512.

Limitations on communications, see West's Federal Administrative Practice 3514.

Encyclopedias

17 Am. Jur. 2d., Consumer and Borrower Protection, 194, 197-199, 201, 202 .

Law Review and Journal Commentaries

Acceleration notices and demand letters. Manuel H. Newburger, 47 Consumer Fin.L.Q.Rep. 338 (1993) ..

Fair Debt Collection Practices Act: Attorneys beware, you too may be a debt collector. Janet Flaccus,1987 Ark.L.Notes 11.

Fair Debt Collection Practices Act: Emerging source of liability for attorneys. Christopher A. Golden, 69 N.Y.St.B.J. 14 (Feb. 1997) .

Guidelines for consumer debt collection by attorneys under the 1986 Amendment to the Fair DebtCollection Practices Act. Michael K. Sweig, 21 New Eng.L.Rev. 697 (1985-86).

Texts and Treatises

Business and Commercial Litigation in Federal Courts 41.3, 61.4, 61.7 (Robert L. Haig, ed.) (WestGroup & ABA 1998).

7 Fed. Proc. L.Ed. Consumer Credit Protection 15:67, 68, 76.

NOTES OF DECISIONS

Agricultural loans 8Attorneys 13

Bail bondsmen, debt collector 16aBusiness transactions 4Checks, debt 4aChild support 5Civil damages 11Collection and servicing agencies 14Communication 1Consumer 2Corporate entities 20Creditors, debt collector 14a


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Debt 3-11 Debt - Generally 3

Debt - Agricultural loans 8Debt - Banks and banking 10Debt - Business transactions 4Debt - Checks 4aDebt - Child support 5Debt - Civil damages 11Debt - Divorce actions 5aDebt - Friendly loans 6Debt - Housing assessments 7Debt - Tax levy 9Debt - Theft 11aDebt collector 12-23Debt collector - Generally 12Debt collector - Attorneys 13Debt collector - Bail bondsmen 16aDebt collector - Banks and banking 15Debt collector - Collection and servicing agencies 14Debt collector - Corporate entities 20Debt collector - Creditors 14aDebt collector - Employees 21 Debt collector - Financing companies 16Debt collector - Guaranty agencies 19Debt collector - Insurers 18Debt collector - Judicial entities 23Debt collector - Media 22Debt collector - Mortgagees 17Debt collector - Repossessors 23aDebt collector - Service providers 23bDivorce actions, debt 5aEmployees 21Financing companies 16Friendly loans 6Guaranty agencies 19Housing assessments 7Insurers 18Judicial entities 23Media 22Mortgagees 17Official duties 24Repossessors, debt collector 23aService providers, debt collector 23b

Tax levy 9Theft, debt 11aTransactions 25

1. Communication

Notice demanding payment of rent arrearage or surrender of rented premises to landlord was"communication" to collect debt, within meaning of Fair Debt Collection Practices Act (FDCPA). Romeav. Heiberger & Associates, S.D.N.Y. 1997, 988 F.Supp. 712 , affirmed 163 F.3d 111 .

Collection bureau's notices to debtor qualified as "communications" in connection with the collection of adebt under this section. In re Scrimpsher, Bkrtcy. N.D.N.Y., 1982, 17 B.R. 999 .


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2. Consumer

Customers of long-distance telephone services provider were not "consumers," within meaning of disclosure requirement of Fair Debt Collection Practices Act (FDCPA) that provider allegedly violatedwhen it failed to notify customers in their telephone bill that it was assisting in collection of debt owed bycustomers' daughter-in-law to provider's former subsidiary or affiliate, given that customers were notobligated to pay daughter-in-law's debt. Conboy v. AT & T Corp., S.D.N.Y. 2000, 84 F.Supp. 2d 492 .

Debtor, as natural person who was obligated to pay debt to hospital for services provided in connectionwith her kidney infection, was "consumer" within meaning of the Fair Debt Collection Practices Act(FDCPA). Creighton v. Emporia Credit Service, Inc., E.D. Va. 1997, 981 F. Supp. 411 .

Patient who had received medical services on credit, and who was primarily responsible for payment of account at medical center, qualified as "consumer" under the Fair Debt Collection Practices Act (FDCPA).Adams v. Law Offices of Stuckert & Yates, E.D. Pa. 1996, 926 F. Supp. 521 .

Fair Debt Collection Practices Act, establishing liability of debt collector who fails to comply with the Act"with respect to any person," does not limit recovery to "consumers," and thus would not preclude recovery

by person to whom debt collector sent letter seeking to collect debt of such person's deceased father even if such person were not a consumer; but, in any event, such person was a "consumer" when collectorsadmittedly demanded payment of debt from him. Dutton v. Wolhar, D.Del. 1992, 809 F. Supp. 1130 .

3. Debt -- Generally

Unpaid administrative and other fees charged under rental agreement by automobile and truck rentalcompany in event of accident constituted "debt" under Fair Debt Collection Practices Act. Brown v.Budget Rent-A-Car System, Inc., C.A. 11 (Fla.) 1997, 119 F. 3d 922 .

First requisite element of debt under Fair Debt Collection Practices Act (FDCPA) is existence of obligation. Ernst v. Jesse L. Riddle, P.C., M.D., La. 1997, 964 F. Supp. 213 .

"Debt," under the Fair Debt Collection Practices Act (FDCPA), is transaction in which consumer is offeredor extended the right to acquire money, property, insurance or services which are primarily for household

purposes and to defer payment. Adams v. Law Offices of Stuckert & Yates, E.D. Pa. 1996, 926 F. Supp.521.

Filing of proof of claim in bankruptcy, even for debt whose amount is disputed, does not trigger the federalFair Debt Collection Practices Act (FDCPA). In re Cooper, Bkrtcy. N.D. Fla., 2000, 253 B.R. 286 .

Collection agency was not prohibited by this subchapter from recovering a percentage of the amount duefor collection costs where such amounts were expressly authorized by agreements creating the debts. GrantRoad Lumber Co., Inc., v. Wystrach, Ariz. App 184, 682 P. 2d 1146, 140 Ariz. 479 .

4. Business transactions

Dishonored check written in payment for consumer goods created "debt" within purview of Fair DebtCollection Practices Act (FDCPA). Snow v. Jesse L. Riddle, P.C., C.A. 10 (Utah) 1998, 143 F. 3d 1350 .

District court properly dismissed guarantor's state and federal consumer debt collection claims againstowner of loan and guaranty, even though guarantor claimed that, because owner was not first owner of loanand guaranty, owner was engaging in collection of debt for another; guarantor's obligation, which arose outof commercial transaction, did not constitute a "debt" under either Federal Fair Debt Collection Act or


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Texas Debt Collection Act. First Gibraltar Bank, FSB v. Smith, C.A. 5 (Tex.) 1995, 62 F. 3d 133 ,rehearing denied.

Purchase of credit card processing unit was not transaction primarily for personal, family, or household purposes and, thus, obligation arising from such purchase did not constitute "debt" within meaning of Fair Debt Collection Practices Act (FDCPA). Holman v. West Valley Collection Services, Inc., D. Minn. 1999,60 F. Supp. 2d 935 .

Debtor's obligation to pay automobile liability insurance premiums was "debt" within meaning of the Fair Debt Collection Practices Act (FDCPA), even though debtor was compelled by state law to obtain suchinsurance and even though obligation benefited others in addition to debtor. Kahn v. Rowley, M.D., La.1997, 968 F. Supp. 1095 .

Neither federal Fair Debt Collection Practices Act (FDCPA) nor Texas Debt Collection Practices Act(DCPA) applied to leases for security equipment obtained and installed by lessees in their family-ownedand operated stores, inasmuch as Acts applied to debts arising out of consumer transactions for personal,family, or household purposes, and lessees used equipment for business purposes, even though equipmentwas intended to provide security to family members working at stores. Garza v. Bancorp Group, Inc., S.D.Tex. 1996, 955 F. Supp. 68 .

Notes used to pay for a portion of investor's partnership interest in tax- shelter limited partnership were nota "debt" within meaning of Fair Debt Collection Practices Act. National Union Fire Ins. Co. of Pittsburgh,Pa. v. Hartel, S.D.N.Y. 1990, 741 F. Supp. 1139 .

Collection of purely business-related debt was not governed by Fair Debt Collection Practices Act. Bank of Boston Intern. Sav., N.Y. City Civ. Ct. 1989, 541 N.Y. S. 2d 920, 143 Misc. 2d 915 .

Debt incurred purely for business reasons is not covered by Fair Debt Collection Practices Act. Mendez v.Apple Bank for Sav., N.Y. City Civ. Ct. 1989, 541 N.Y. S. 2d 920, 143 Misc. 2d 915 .

4A. Checks

Fair Debt Collection Practices Act's (FDCPA) broad definition of "debt" as any obligation to pay arisingfrom consumer transaction applied to dishonored checks, given that check issuers' payment obligationsarose from transactions for personal or household goods; thus, check issuers stated claims under FDCPAwhen they alleged that attorney and company attempting to collect payment on dishonored checks violatedFDCPA. Duffy v. Landberg, C.A. 8 (Minn.) 1998, 133 F. 3d 112 , rehearing denied, certiorari denied 119S.Ct. 62, 525 U.S. 821, 142 L.Ed. 2d 49 .

Check writer stated claim when she alleged that check collection agency, attorney, and law firm violatedFair Debt Collection Practices Act (FDCPA) in attempting to collect dishonored check, inasmuch asdishonored check was debt under FDCPA. Charles v. Lundgren & Associates, P.C., C.A. 9 (Ariz.) 1997,119 F. 3d 739 , certiorari denied 118 S.Ct. 627, 522 U.S. 1028, 139 L.Ed. 2d 607 , on remand.

5. Child support

Child support payments are not "debts" encompassed within scope of Fair Debt Collection Practices Act(FDCPA). Mabe v. G.C. Services Ltd. Partnership, C.A. 4 (Va.) 1994, 32 F. 3d 86 .

Former husband's child support obligation was not debt arising out of transaction with subject primarily of "personal, family, or household purposes," within meaning of the Fair Debt Collection Act, and thus,former husband's child support payments were not "debts" protected by the Fair Debt Collection PracticesAct; former husband could not point to any money, property, insurance, or services he received inconnection with the child support obligations. Brown v. Child Support Advocates, D. Utah 1994, 878 F.


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Supp. 1451 .

5A. Divorce actions

Fair Debt Collection Practices Act (FDCPA) was not applicable to law firm's efforts to enforce propertysettlement obligations imposed by divorce decree; obligations, though based on negotiated maritaltermination agreement, did not arise from consumer transaction, and thus were not "debts," within meaningof Act. Hicken v. Arnold, Anderson & Dove, P.L.L.P., Minn. 2001, 137 F. Supp. 2d 1141 .

6. Friendly loans

Loan between friends made so that debtor could invest in software company was "business loan," not"consumer debt," and, thus, Fair Debt Collection Practices Act did not apply; debtor's intended use of fundscould not be characterized as "primarily for personal, family or household purposes." Bloom v. I.C.System, Inc., C.A. 9 (Or.) 1992, 972 F. 2d 1067 .

Personal loan between friends which was used by borrower as venture capital investment was not loan"primarily for personal, family, or household purposes" and was thus not subject to Fair Debt CollectionPractices Act (FDCPA), regardless of intent of lender. Bloom v. I.C. System, Inc., D. Or. 1990, 753 F.Supp. 314 , affirmed 972 F. 2d 1067 .

There are two types of jurisdiction relating to people. Personal jurisdiction is

lawfully exercised over a defendant if the person lives in a jurisdiction, operates a

business in a jurisdiction, owns property in a jurisdiction, or commits an injury in a

jurisdiction and has had notice and opportunity (is in receipt of service and has a copy of

the petition, claim, or complaint). If these elements are complete, personal jurisdiction

CANNOT BE DENIED . Even if these elements are lacking, personal jurisdiction can be waived by appearance excepting a person, not represented by counsel, entering a

special appearance for the purpose of challenging the courts personal jurisdiction.

Subject matter jurisdiction is the courts power to hear and determine cases of the general

class or category to which proceedings in question belong; the power to deal with the

general subject involved in the action. Subject matter jurisdiction can never be waived,

cannot attach by mutual consent of the parties, or through lapse of time or course of

events other than sufficient pleadings. Once established, subject matter jurisdiction CAN be lost. When subject matter jurisdiction is challenged, the party asserting that the court

has subject matter jurisdiction has the burden of showing that it exists on the record.

Once the court has knowledge that subject matter jurisdiction is lacking, the court

(meaning the judge) has no discretion but to dismiss the action. Failure to dismiss means

that the court is proceeding in clear absence of all jurisdiction and subjects the judge to


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suit. Contemplation of subject matter jurisdiction harkens to the memory of Vince

Lombardi, who when ask if winning was everything, replied, Winning is the only

thing. Personal jurisdiction is not usually an issue, but subject matter jurisdiction is

always, always an issue! Subject matter jurisdiction is not everything, its the only thing!

Incidentally, in rem is the power of a court over a thing so that its jurisdiction is valid

against the rights of every person having an interest in the thing; quasi in rem gives the

court jurisdiction over a property interest, but only to the limit of the interest in the

property and not the property entirely.

Attorneys cant testify. Statements of counsel in brief or in oral argumentare not facts before the court.

This finding of a continuing investigation, which forms the foundation of themajority opinion, comes from statements of counsel made during the appellate process.

As we have said of other un-sworn statements which were not part of the record and

therefore could not have been considered by the trial court: "Manifestly, [such

statements] cannot be properly considered by us in the disposition of [a] case." UNITED

STATES v. LOVASCO (06/09/77) 431 U.S. 783, 97 S. Ct. 2044, 52 L. Ed. 2d 752.

Under no possible view, however, of the findings we are considering can they be held to

constitute a compliance with the statute, since they merely embody conflicting

statements of counsel concerning the facts as they suppose them to be and their

appreciation of the law which they deem applicable, there being, therefore, no attempt

whatever to state the ultimate facts by a consideration of which we would be able to

conclude whether or not the judgment was warranted. GONZALES v. BUIST.

(04/01/12) 224 U.S. 126, 56 L. Ed. 693, 32 S. Ct. 463. No instruction was asked, but, as

we have said, the judge told the jury that they were to regard only the evidence admitted

by him, not statements of counsel , HOLT v. UNITED STATES. (10/31/10) 218 U.S.

245, 54 L. Ed. 1021, 31 S. Ct. 2. Care has been taken, however, in summoning witnessesto testify, to call no man whose character or whose word could be successfully

impeached by any methods known to the law. And it is remarkable, we submit, that in a

case of this magnitude, with every means and resource at their command, the

complainants, after years of effort and search in near and in the most remote paths, and in


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every collateral by-way, now rest the charges of conspiracy and of gullibility against

these witnesses, only upon the bare statements of counsel . The lives of all the witnesses

are clean, their characters for truth and veracity un-assailed, and the evidence of any

attempt to influence the memory or the impressions of any man called, cannot be

successfully pointed out in this record. TELEPHONE CASES. DOLBEAR v.

AMERICAN BELL TELEPHONE COMPANY. MOLECULAR TELEPHONE

COMPANY V. AMERICAN BELL TELEPHONE COMPANY. AMERICAN BELL

TELEPHONE COMPANY V. MOLECULAR TELEPHONE COMPANY. CLAY

COMMERCIAL TELEPHONE COMPANY V. AMERICAN BELL TELEPHONE

COMPANY. PEOPLE'S TELEPHONE COMPANY V. AMERICAN BELL

TELEPHONE COMPANY. OVERLAND TELEPHONE COMPANY V. AMERICAN

BELL TELEPHONE COMPANY. (PART TWO THREE) (03/19/88) 126 U.S. 1, 31 L.Ed. 863, 8 S. Ct. 778. Statements of counsel in brief or in argument are not sufficient for

motion to dismiss or for summary judgment, Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F.

Supp. 647. Factual statements or documents appearing only in briefs shall not be deemed

to be a part of the record in the case, unless specifically permitted by the Court -

Oklahoma Court Rules and Procedure, Federal local rule 7.1(h).

SECTION TWO: The law of voids

EVERYTHING YOU ALWAYS WANTED TO KNOW ABOUT

VOID JUDGMENTS, BUT WERE AFRAID TO ASK!

Void judgments are those rendered by a court which lacked jurisdiction, either of

the subject matter or the parties, Wahl v. Round Valley Bank 38 Ariz. 411, 300 P. 955

(1931); Tube City Mining & Milling Co. v. Otterson, 16 Ariz. 305, 146 P. 203 (1914);

and Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 2d 278 (1940). A void

judgment which includes judgment entered by a court which lacks jurisdiction over the

parties or the subject matter, or lacks inherent power to enter the particular judgment, or

an order procured by fraud, can be attacked at any time, in any court, either directly or

collaterally, provided that the party is properly before the court, Long v. Shorebank

Development Corp., 182 F.3d 548 ( C.A. 7 Ill. 1999). A void judgment is one which,


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judgment may be defined as one in which rendering court lacked subject matter

jurisdiction, lacked personal jurisdiction or acted in manner inconsistent with due process

of law, Eckel v. MacNeal, 628 N.E. 2d 741 (Ill. App. Dist. 1993). Void judgment is one

entered by court without jurisdiction of parties or subject matter or that lacks inherent

power to make or enter particular order involved; such judgment may be attacked at any

time, either directly or collaterally, People v. Sales, 551 N.E.2d 1359 (Ill.App. 2 Dist.

1990). Res judicata consequences will not be applied to a void judgment which is one

which, from its inception, is a complete nullity and without legal effect , Allcock v.

Allcock 437 N.E. 2d 392 (Ill. App. 3 Dist. 1982). Void judgment is one which, from its

inception is complete nullity and without legal effect, In re Marriage of Parks, 630 N.E.

2d 509 (Ill.App. 5 Dist. 1994). Void judgment is one entered by court that lacks the

inherent power to make or enter the particular order involved, and it may be attacked atany time, either directly or collaterally; such a judgment would be a nullity, People v.

Rolland, 581 N.E.2d 907, (Ill.App. 4 Dist. 1991). Void judgment under federal law is

one in which rendering court lacked subject matter jurisdiction over dispute or

jurisdiction over parties, or acted in manner inconsistent with due process of law or

otherwise acted unconstitutionally in entering judgment, U.S.C.A. Const. Amed. 5, Hays

v. Louisiana Dock Co., 452 N.E. 2D 1383 (Ill. App. 5 Dist. 1983). A void judgment has

no effect whatsoever and is incapable of confirmation or ratification, Lucas v. Estate of

Stavos, 609 N.E. 2d 1114, rehearing denied, and transfer denied (Ind. App. 1 dist. 1993).

Void judgment is one that from its inception is a complete nullity and without legal

effect, Stidham V. Whelchel, 698 N.E.2d 1152 (Ind. 1998). Relief from void judgment is

available when trial court lacked either personal or subject matter jurisdiction,

Dusenberry v. Dusenberry, 625 N.E. 2d 458 (Ind.App. 1 Dist. 1993). Void judgment is

one rendered by court which lacked personal or subject matter jurisdiction or acted in

manner inconsistent with due process, U.S.C.A. Const. Amends. 5, 14 Matter of

Marriage of Hampshire, 869 P.2d 58 (Kan. 1997). Judgment is void if court that

rendered it lacked personal or subject matter jurisdiction; void judgment is nullity and

may be vacated at any time , Matter of Marriage of Welliver, 869 P.2d 653 (Kan. 1994).

A void judgment is one rendered by a court which lacked personal or subject matter

jurisdiction or acted in a manner inconsistent with due process, In re Estate of Wells, 983


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P.2d 279, (Kan. App. 1999). Void judgment is one rendered in absence of jurisdiction

over subject matter or parties 310 N.W. 2d 502, (Minn. 1981). A void judgment is one

rendered in absence of jurisdiction over subject matter or parties, Lange v. Johnson, 204

N.W.2d 205 (Minn. 1973). A void judgment is one which has merely semblance,

without some essential element, as when court purporting to render it has no jurisdiction,

Mills v. Richardson, 81 S.E. 2d 409, (N.C. 1954). A void judgment is one which has a

mere semblance, but is lacking in some of the essential elements which would authorize

the court to proceed to judgment, Henderson v. Henderson, 59 S.E. 2d 227, (N.C. 1950).

Void judgment is one entered by court without jurisdiction to enter such judgment, State

v. Blankenship, 675 N.E. 2d 1303, (Ohio App. 9 Dist. 1996). Void judgment, such as

may be vacated at any time is one whose invalidity appears on face of judgment roll,

Graff v. Kelly, 814 P.2d 489 (Okl. 1991). A void judgment is one that is void on face of judgment roll , Capital Federal Savings Bank v. Bewley, 795 P.2d 1051 (Okl. 1990).

Where condition of bail bond was that defendant would appear at present term of court,

judgment forfeiting bond for defendants bail to appear at subsequent term was a void

judgment within rule that laches does not run against a void judgment, Com. V. Miller,

150 A.2d 585 (Pa. Super. 1959). A void judgment is one in which the judgment is

facially invalid because the court lacked jurisdiction or authority to render the judgment,

State v. Richie, 20 S.W.3d 624 (Tenn. 2000). Void judgment is one which shows upon

face of record want of jurisdiction in court assuming to render judgment, and want of

jurisdiction may be either of person, subject matter generally, particular question to be

decided or relief assumed to be given, State ex rel. Dawson v. Bomar, 354 S.W. 2d 763,

certiorari denied, (Tenn. 1962). A void judgment is one which shows upon face of record

a want of jurisdiction in court assuming to render the judgment, Underwood v. Brown,

244 S.W. 2d 168 (Tenn. 1951). A void judgment is one which shows on face of record

the want of jurisdiction in court assuming to render judgment, which want of jurisdiction

may be either of the person, or of the subject matter generally, or of the particular

question attempted to decided or relief assumed to be given, Richardson v. Mitchell , 237

S.W. 2d 577, (Tenn. Ct. App. 1950). Void judgment is one which has no legal force or

effect whatever, it is an absolute nullity, its invalidity may be asserted by any person

whose rights are affected at any time and at any place and it need not be attacked directly


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but may be attacked collaterally whenever and wherever it is interposed, City of Lufkin v.

McVicker, 510 S.W. 2d 141 (Tex. Civ. App. - Beaumont 1973). A void judgment,

insofar as it purports to be pronouncement of court, is an absolute nullity, Thompson v.

Thompson, 238 S.W.2d 218 (Tex.Civ.App. - Waco 1951). A void judgment is one that

has been procured by extrinsic or collateral fraud, or entered by court that did not have

jurisdiction over subject matter or the parties, Rook v. Rook, 353 S.E. 2d 756 , (Va. 1987).

A void judgment is a judgment, decree, or order entered by a court which lacks

jurisdiction of the parties or of the subject matter, or which lacks the inherent power to

make or enter the particular order involved, State ex rel. Turner v. Briggs , 971 P.2d 581

(Wash. App. Div. 1999). A void judgment or order is one that is entered by a court

lacking jurisdiction over the parties or the subject matter, or lacking the inherent power to

enter the particular order or judgment, or where the order was procured by fraud, In re Adoption of E.L., 733 N.E.2d 846, (Ill.App. 1 Dist. 2000). Void judgments are those

rendered by court which lacked jurisdiction, either of subject matter or parties,

Cockerham v. Zikratch, 619 P.2d 739 (Ariz. 1980). Void judgments generally fall into

two classifications, that is, judgments where there is want of jurisdiction of person or

subject matter, and judgments procured through fraud, and such judgments may be

attacked directly or collaterally, Irving v. Rodriquez, 169 N.E.2d 145, (Ill.app. 2 Dist.

1960). Invalidity need not appear on face of judgment alone that judgment or order may

be said to be intrinsically void or void on its face, if lack of jurisdiction appears from the

record, Crockett Oil Co. v. Effie, 374 S.W.2d 154 ( Mo.App. 1964). Decision is void on

the face of the judgment roll when from four corners of that roll, it may be determined

that at least one of three elements of jurisdiction was absent: (1) jurisdiction over parties,

(2) jurisdiction over subject matter, or (3) jurisdictional power to pronounce particular

judgment that was rendered, B & C Investments, Inc. v. F & M Nat. Bank & Trust, 903

P.2d 339 (Okla. App. Div. 3, 1995). Void order may be attacked, either directly or

collaterally, at any time, In re Estate of Steinfield , 630 N.E.2d 801, certiorari denied. See

also Steinfeld v. Hoddick , 513 U.S. 809, (Ill. 1994). Void order which is one entered by

court which lacks jurisdiction over parties or subject matter, or lacks inherent power to

enter judgment, or order procured by fraud, can be attacked at any time, in any court,

either directly or collaterally, provided that party is properly before court, People ex rel.


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Brzica v. Village of Lake Barrington, 644 N.E.2d 66 (Ill.App. 2 Dist. 1994). While

voidable orders are readily appealable and must be attacked directly, void order may be

circumvented by collateral attack or remedied by mandamus, Sanchez v. Hester, 911

S.W.2d 173, (Tex.App. - Corpus Christi 1995). Arizona courts give great weight to

federal courts interpretations of Federal Rule of Civil Procedure governing motion for

relief from judgment in interpreting identical text of Arizona Rule of Civil Procedure,

Estate of Page v. Litzenburg, 852 P.2d 128, review denied (Ariz.App. Div. 1, 1998).

When rule providing for relief from void judgments is applicable, relief is not

discretionary matter, but is mandatory, Orner v. Shalala, 30 F.3d 1307, (Colo. 1994).

Judgments entered where court lacked either subject matter or personal jurisdiction, or

that were otherwise entered in violation of due process of law, must be set aside, Jaffe

and Asher v. Van Brunt, S.D.N.Y.1994. 158 F.R.D. 278. A "void" judgment, as we allknow, grounds no rights, forms no defense to actions taken thereunder, and is vulnerable

to any manner of collateral attack (thus hereby). No statute of limitations or repose runs

on its holdings, the matters thought to be settled thereby are not res judicata, and years

later, when the memories may have grown dim and rights long been regarded as vested,

any disgruntled litigant may reopen the old wound and once more probe its depths. And

it is then as though trial and adjudication had never been. 10/13/58 FRITTS v. KRUGH .

SUPREME COURT OF MICHIGAN, 92 N.W.2d 604, 354 Mich. 97. On certiorari this

Court may not review questions of fact. Brown v. Blanchard , 39 Mich 790. It is not

at liberty to determine disputed facts ( Hyde v. Nelson , 11 Mich 353), nor to review

the weight of the evidence. Linn v. Roberts , 15 Mich 443; Lynch v. People , 16 Mich

472. Certiorari is an appropriate remedy to get rid of a void judgment, one which there

is no evidence to sustain . Lake Shore & Michigan Southern Railway Co. v. Hunt , 39

Mich 469.

The really big deal, the real issue in void judgments is, tah, dum, de dum,

SUBJECT MATTER JURISDICTION!!!! Remember, subject matter can never be

presumed, never be waived, and cannot be constructed even by mutual consent of the

parties. Subject matter jurisdiction is two part: The statutory or common law authority


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for the court to hear the case and the appearance and testimony of a competent fact

witness, in other words, sufficiency of pleadings.

Subject matter jurisdictional failings:

(1) no Petition in the record of the case, Brown v. VanKeuren , 340 Ill. 118, 122 1930),

(2) defective Petition filed, Brown v. VanKeuren , 340 Ill. 118, 122 1930),

(3) fraud committed in the procurement of jurisdiction, Fredman Brothers Furniture v

Dept. of Revenue , 109 Ill.2d 202, 486 N.E. 2d 893 (1985),

(4) fraud upon the court, In re Village of Willowbrook , 37 Ill.App.3d 393 (1962),

(5) a judge does not follow statutory procedure, Armstrong v Obucino , 300 Ill 140, 143

(1921),

(6) unlawful activity of a judge, Code of Judicial Conduct,

(7) violation of due process, Johnson v Zerbst , 304 U.S. 458, 58 S.Ct. 1019 (1938); PureOil Co. v City of Northlake , 10 Ill.2d 241, 245, 140 N.E.2d 289 (1956); Hallberg v

Goldblatt Bros ., 363 Ill 25 (1936),

(8) if the court exceeded its statutory authority, Rosenstiel v Rosenstiel , 278 F.Supp. 794

(S.D.N.Y. 1967),

(9) any acts in violation of 11 U.S.C. 362(a), In re Garcia , 109 B.R. 335 (N.D. Illinois,

1989),

(10) where no justiciable issue is presented to the court through proper pleadings, Ligon

v Williams , 264 Ill.App.3d 701, 637 N.E.2d 633 (1 st Dist. 1994),

(11) where a complaint states no cognizable cause of action against that party, Charles v

Gore , 248 Ill.App.3d 441, 618 N.E. 2d 554 (1st Dist 1993),

(12) where any litigant was represented before a court by a person/law firm that is

prohibited by law to practice law in that jurisdiction,

(13) when the judge is involved in a scheme of bribery (the Alemann cases, Bracey v

Warden , U.S. Supreme Court No. 96-6133 (June 9, 1997),

(14) where a summons was not properly issued,

(15) where service of process was not made pursuant to statute and Supreme Court

Rules, Janove v Bacon , 6 Ill.2d 245, 249, 218 N.E.2d 706, 708 (1955),

(16) when the Rules of the Circuit Court are not complied with,

(17) when the Local Rules of the special court are not complied with,


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(18) where the judge does not act impartially, Bracey v Warden , U.S. Supreme Court No.

96-6133 (June 9, 1997),

(19) where the statute is vague, People v Williams , 638 N.E.2d 207 (1 st Dist. 1994),

(20) when proper notice is not given to all parties by the movant, Wilson v. Moore , 13

Ill.App.3d 632, 301 N.E.2d 39 (1st Dist. 1973),

(21) where an order/judgment is based on a void order/judgment, Austin v. Smith , 312

F.2d 337, 343 (1962); English v English , 72 Ill.App.3d 736, 393 N.E.2d 18 (1st Dist.

1979), or

(22) where the public policy of the State of Illinois is violated, Martin-Tregona v

Roderick , 29 Ill.App.3d 553, 331 N.E.2d 100 (1st Dist. 1975).


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SUMMARY OF THE LAW OF VOIDS

Before a court (judge) can proceed judicially, jurisdiction must be complete,

consisting of two opposing parties (not their attorneys - although attorneys can enter an

appearance on behalf of a party, only the parties can testify, and until the plaintiff

testifies, the court has no basis upon which to rule judicially), and the two halves of

subject matter jurisdiction = the statutory or common law authority the action is brought

under (the theory of indemnity) and the testimony of a competent fact witness regarding

the injury (the cause of action). If there is a jurisdictional failing appearing on the face of

the record, the matter is void, subject to vacation with damages, and can never be time

barred. There are an estimated fifty-million (50,000,000) void judgments on the

books in Americas courthouses. IF EVERY VOID JUDGMENT WAS VACATED

WITH DAMAGES, IT WOULD REPRESENT THE GREATEST SHIFT IN

MATERIAL WEALTH IN THE HISTORY OF THE WORLD!

So how do we vacate void judgments?

We petition to vacate them - we sue them!

This is known as a collateral attack. Sometimes a direct attack is appropriate, but not

usually. A direct attack goes back into the same court where judgment was obtained and

likely to the same judge. Obviously, it is usually most beneficial to do a collateral attack -

SUE THEM! SUE THE PARTY WHO GOT THE JUDGMENT AGAINST YOU OR

YOUR FRIEND. Also, after we get the judgment vacated, its almost always moot and

cannot be reasserted, especially if beyond the statute of limitations. And please

remember, statutes of limitation DO NOT APPLY TO VACATING VOID

JUDGMENTS!

Following are three sample cases to vacate void judgments. The court (meaning the

judge) cannot consider any information not shown to be of record in the original case AS

THERE IS NO PRE-TRIAL IN VACATING VOID JUDGMENTS!!!!


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IN THE DISTRICT COURT OF TULSA COUNTY

STATE OF OKLAHOMA

Robert S. Smart ))

Plaintiff ))

v. ) CIVIL NO._____________

)W. Claire Badgirl ))

Defendant. ))

VERIFIED PETITION IN THE NATURE OF A PETITION TO VACATE A VOIDJUDGMENT AND COLLATERAL ATTACK UNDER AUTHORITY

OKLAHOMA STATUTE TITLE 12, SECTION 1038

1. Robert S. Smart, an aggrieved party, petitions this court under authority of O.S.12, 1038 for vacation of a void judgment and void garnishment summons, copies of

which are attached.

2. The record made in CJ 2002 0000 verifies that the court wanted subject matter

jurisdiction to rule and determine that Robert S. Smart was a judgment debtor to W.

Claire Badgirl. Default judgment must be proved by evidence entered on the record

through a competent witness. See American Red Cross v. Community Blood Center of

the Ozarks , 257 F.3d 859 (8 th Cir. 07/25/2001). Statements of counsel in brief or in

argument ARE NOT FACTS BEFORE THE COURT AND ARE THEREFORE

INSUFFICIENT FOR THE COURTS SUMMARY CONCLUSION, Trinsey v.

Pagliaro, D.C. Pa. 1964, 229 F. Supp. 647. Unsupported contentions of material fact are

not sufficient on motion for summary judgment, but rather, material facts must be

supported by affidavits and other testimony and documents that would be admissible in


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evidence at trial, Cinco Enterprises, Ins. V. Benso, Okla., 890 P2d 866 (1994). Where

there were no depositions, admissions, answers to interrogatories, or affidavits, plaintiffs

motion for summary judgment could not be considered under district court rule (O.S. title

12, Chapter 12, Rule 13) providing for judgment where facts are not controverted,

inasmuch as there was a complete absence of any of requisite basis for a proper

determination that no substantial controversy existed. Oklahoma Statutes Annotated,

Supp. pg. 113. Any ruling on motion for summary adjudication must be made on record

parties have actually made and not upon one that is theoretically possible, State ex rel.

Macy v. Thirty Thousand Seven Hundred Eighty One Dollars & No / 100, Okla. App.

Div. 1, 865 P.2d 1262 (1993).

3. William C. Poxxs May 23, 2002 garnishment affidavit is void on its face. Mr.

Poxx is a debt collector. Mr. Poxx failed to inform Robert S. Smart of his due processrights under the Fair Debt Collections Practices Act, depriving the Tulsa County court

clerk of authority to grant the garnishment.

CONCLUSION

4. The rule of law requires vacation of the judgment and garnishment in case

number CJ 2002 0000, returning all that has been taken from Robert S. Smart in respect

of the void judgment CJ 2002 0000, compensating Robert S. Smart for the costs in

bringing this action, and compelling William C. Poxx to compensate Robert S. Smart for

attempting to defraud Robert S. Smart as a jury should decide necessary to amend the bad

behavior of William C. Poxx.

JURY TRIAL DEMANDED

I, Robert S. Smart, verify the factual averments of the above and foregoing under penalty

of perjury.

___________________________

Robert S. Smart

STATE OF OKLAHOMA INDIVIDUAL ACKNOWLEDGMENT

COUNTY OF TULSA Oklahoma Form

Before me, the undersigned, a Notary Public in and for said County and State onthis ____ day of ________, 2002, personally appeared __________________________ to me known to be the identical person who executed the within and foregoing instrumentand acknowledged to me that he executed the same as his free and voluntary act.


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Given under my hand and seal the day and year last above written.My commission expires __________

________________ Notary Public

IN THE DISTRICT COURT OF OKLAHOMA COUNTY

STATE OF OKLAHOMA

Sharon C. Right )and )

Jim R. Right ))

Plaintiffs ))v. ) CIVIL NO._____________

)MIDFIRST BANK, N.A. )

)Defendant. )

)

PETITION IN THE NATURE OF A PETITION TO VACATEA VOID JUDGMENT AND COLLATERAL ATTACK OKLAHOMA STATUTE

TITLE 12, SECTIONS 1031, 1038

1. Sharon C. Right and Jim R. Right, aggrieved parties, petition this court under authority

of O.S. 12, 1031, 1038 for vacation of a void judgment attached.

2. Fraud was practiced in obtaining judgment warranting vacation of judgment CS-

2001-1234: (1) William L. Nixon, Jr. committed felony fraud by advancing writings

which William L. Nixon, Jr., knew were false with the intent that Sharon C. Right and

Jim R. Right and the court would rely on to deprive Sharon C. Right and Jim R. Right of

money, property and rights. William L. Nixon, Jr., knew that the sum demanded of

Sharon C. Right and Jim R. Right was different from and greater than a sum Sharon C.

Right and Jim R. Right could owe under any lawful theory.

3. The putative judgment in CS-2001-1234 is insufficient on its face. The putative

judgment in CS-2001-1234 is not ratified by the signature of a judge. This suggests that


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William L. Nixon, Jr. and David M. Harbour are involved in the holder in due course

fraud racket. See O.S. Title 21, Chapter 19, 554, Attorney Buying Evidence of Debt-

Misleading Court. Every attorney who either directly or indirectly buys or is interested in

buying any evidence of debt or thing in action with intent to bring suit thereon is guilty of

a misdemeanor. Any attorney who in any proceeding before any court of a justice of the

peace or police judge or other inferior court in which he appears as attorney, willfully

misstates any proposition or seeks to mislead the court in any matter of law is guilty of a

misdemeanor and on any trial therefore the state shall only be held to prove to the court

that the cause was pending, that the defendant appeared as an attorney in the action, and

showing what the legal statement was, wherein it is not the law. If the defense be that the

act was not willful, the burden shall be on the defendant to prove that he did not know

that there was error in his statement of law. Any person guilty of falsely preparing any book, paper, [({ record, })], instrument in writing, or other matter or thing, with intent to

produce it, or allow it to be produced as genuine upon any [({ trial, proceeding or inquiry

whatever, })] authorized by law, SHALL BE GUILTY OF A FELONY. See Oklahoma

Statutes Title 21. Crimes and Punishments, Chapter 13, Section 453. Reasonably and

logically, the rubber stamp mark of David M. Harbour either appears on the attached

putative judgment without knowledge of David M. Harbour or David M. Harbour chose

to stamp the judgment rather than sign it to be able to later deny knowledge of the fraud

clearly articulated at O.S. Title 21, Chapter 19, 554. It is also true that an unsigned

order is not an order. See SECOND NAT. BANK OF PAINTSVILLE v. BLAIR, 186

S.W.2d 796.

4. A default judgment (even if properly signed) does not enjoy the presumption of res

judicata. William L. Nixon, Jr., placed no evidence on record to prove his case: For

want of a competent fact witness appearing and testifying on record, the court wanted

subject matter jurisdiction to consider the unverified, undocumented claims of William L.

Nixon, Jr.

5. A jurys determination that the putative judgment in CS-2001-1234 contained a claim

which was greater than and different from lawfully owed and or that the putative

judgment was not signed and or that jurisdiction is lacking on the face of the record for

want of any evidence whatsoever, warrants vacation of the judgment in CS-2001-1234.


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Determination that William L. Nixon, Jr., has violated O.S. Title 21, Chapter 19, 554

and or O.S. Title 21, Chapter 13, 453, and or O.S. Title 21, Chapter 11, 421 requires a

warrant for the arrest of William L. Nixon, Jr. A jurys determination that William L.

Nixon, Jr. willfully acted to defraud Sharon C. Right and Jim R. Right justly requires

that William L. Nixon, Jr., be compelled to compensate Sharon C. Right and Jim R. Right

a sum of not less twenty-five thousand dollars ($25,000.00), the standard damages for

fraud.

JURY TRIAL DEMANDED

Prepared and submitted by:

____________________________________________

Sharon C. Right Jim R. Right


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IN THE DISTRICT COURT OF OKLAHOMA COUNTY

STATE OF OKLAHOMA

Billie E. Brighter )and )

Bernarda Brighter, )

a married couple ))Plaintiffs )

)v. ) No. 1234567890

)GOETZ AND COMPANY, INC., )

)Defendant. )

)

PETITION IN THE NATURE OF A QUIET TITLE ACTIONAND CLAIM / JUDICIAL NOTICE

1. Billie E. Brighter and Bernarda Brighter, hereinafter the Brighters, petition

this court under authority of 12 Okl. St. 93 (4), 12 Okl. St. 131, 1141 and 21 Okl.

St. 1533.

JUDICIAL NOTICE

2. All officers of the court for Oklahoma County, Oklahoma are hereby placed on

notice under authority of the supremacy and equal protection clauses of the United States

Constitution and the common law authorities of Haines v. Kerner , 404 U.S. 519-421,

Platsky v. C.I.A., 953 F.2d. 25, and Anastasoff v. United States, 223 F.3d 898 (8 th Cir.

2000) relying on Willy v. Coastal Corp., 503 U.S. 131, 135 (1992), United States v.

International Business Machines Corp., 517 U.S. 843, 856 (1996), quoting Payne v.


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Tennessee, 501 U.S. 808, 842 (1991) (Souter, J., concurring), Trinsey v. Pagliaro, D.C.

Pa. 1964, 229 F. Supp. 647, American Red Cross v. Community Blood Center of the

Ozarks , 257 F.3d 859 (8 th Cir. 07/25/2001), and Local Rules of the United States District

Court for the Western District of Oklahoma, Rule 7.1(h). In re Haines : pro se litigants

(the Brighters are pro se litigants) are held to less stringent pleading standards than bar

licensed attorneys . Regardless of the deficiencies in their pleadings, pro se litigants are

entitled to the opportunity to submit evidence in support of their claims. In re Platsky :

court errs if court dismisses the pro se litigant (the Brighters are pro se litigants) without

instruction of how pleadings are deficient and how to repair pleadings. In re Anastasoff :

litigants constitutional rights are violated when courts depart from precedent where

parties are similarly situated. All litigants have a constitutional right to have their claims

adjudicated according the rule of precedent. See Anastasoff v. United States, 223 F.3d898 (8 th Cir. 2000). Statements of counsel, in their briefs or their arguments are not

sufficient for a motion to dismiss or for summary judgment, Trinsey v. Pagliaro, D.C. Pa.

1964, 229 F. Supp. 647. See also, Local Rules of the United States District Court for the

Western District of Oklahoma, Rule 7.1(h). This court is also noticed on the following

point of law: Prevailing party on default judgment of liability must still prove damages,

American Red Cross v. Community Blood Center of the Ozarks , 257 F.3d 859 (8 th Cir.

07/25/2001). This court is further noticed on U.S.C.A. Const. Amend. 5 - Triad Energy

Corp. v. McNell, 110 F.R.D. 382 (S.D.N.Y. 1986), Fed. Rules Civ. Proc., Rule 60(b)(4),

28 U.S.C.A., U.S.C.A. Klugh v. U.S., 620 F.Supp. 892 (D.S.C. 1985), State v.

Blankenship, 675 N.E. 2d 1303, (Ohio App. 9 Dist. 1996), Graff v. Kelly, 814 P.2d 489

(Okl. 1991), Capital Federal Savings Bank v. Bewley, 795 P.2d 1051 (Okl. 1990), Com.

V. Miller, 150 A.2d 585 (Pa. Super. 1959), and Reider v. Sonotone Corp., 422 US 330,

(1979), all discussed and relied upon infra.

3. Notwithstanding the fact that the record made in the underlying case construes

in harmony with 12 Okl. St. 93 (4), defense of laches cannot be raised where the

judgment is facially void. Void judgment is one entered by court without jurisdiction to

enter such judgment, State v. Blankenship, 675 N.E. 2d 1303, (Ohio App. 9 Dist. 1996).

Void judgment, such as may be vacated at any time is one whose invalidity appears on

face of judgment roll, Graff v. Kelly, 814 P.2d 489 (Okl. 1991). A void judgment is one


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that is void on face of judgment roll , Capital Federal Savings Bank v. Bewley, 795 P.2d

1051 (Okl. 1990). Where condition of bail bond was that defendant would appear at

present term of court, judgment forfeiting bond for defendants bail to appear at

subsequent term was a void judgment within rule that laches does not run against a void

judgment, Com. V. Miller, 150 A.2d 585 (Pa. Super. 1959).

4. CAUSE OF ACTION: GOETZ AND COMPANY, INC., is trespassing on

property to which the Brighters hold right, title, and interest to described as Lots

THIRTEEN (13) and FOURTEEN (14) in Block FIFTY FOUR (54) in SHIELDS

SOUTH OKLAHOMA CITY ADDITION to Oklahoma City, Oklahoma County,

Oklahoma as shown by the recorded plat thereof. A copy of the Brighters deeds are

attached. The putative judgment of FIRST ENTERPRISE BANK giving rise to the chain

of title ending with GOETZ AND COMPANY, INC., occulting the Brighters property,is void on its face: (1) Even in a default judgment, plaintiff must prove case by

submission of evidence through a competent witness. The record made in CJ-0000

reveals no evidence construing in harmony with Local Rule 7.1(h) of the United States

District Court for the Western District of Oklahoma, Oklahoma Title 12, Chapter 12,

Rule 13, or the common law authority of American Red Cross v. Community Blood

Center of the Ozarks , 257 F.3d 859 (8 th Cir. 07/25/2001). (2) The court in the underlying

action wanted subject matter jurisdiction to rule favorably for debt collector in the action,

Delmer W. Porter. Mr. Porter failed or refused to inform the Brighters of their due

process rights under the Fair Debt Collections Practices Act. See Reider v. Sonotone

Corp., 422 US 330, (1979). When the Brighters were deprived of due process rights, the

court was deprived of subject matter jurisdiction. For examples see: Void judgment is

one where court lacked personal or subject matter jurisdiction or entry of order violated

due process, U.S.C.A. Const. Amend. 5 - Triad Energy Corp. v. McNell, 110 F.R.D. 382

(S.D.N.Y. 1986) and Judgment is a void judgment if court that rendered judgment

lacked jurisdiction of the subject matter, or of the parties, or acted in a manner

inconsistent with due process, Fed. Rules Civ. Proc., Rule 60(b)(4), 28 U.S.C.A.;

U.S.C.A. Const. Amend. 5 - Klugh v. U.S., 620 F.Supp. 892 (D.S.C. 1985).

5. The amount in controversy exceeds ten-thousand dollars ($10,000.00).

REMEDY SOUGHT


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Act to sue or one year from the taking of property by the collector. An aggrieved party

under the Act is entitled to one thousand dollars ($1,000.00) in statutory damages, plus

unlimited damages for intentional infliction of emotional anguish. In addition,

without time limitation, judgments, including judgments which have been collected and

mortgage foreclosures, are void by reason of deprivation of due process rights deprives

the court of subject matter jurisdiction. It is possible to recover full damages under both

strategies or double recovery.

Workbook Assignment: Research the Fair Debt Collections Practices act in the

annotated.

Commentary: Some Patriots have been lured into the argument: They never loaned meanything! in examination of mortgages. This argument is based on the incomplete

observation that a promissory note is given to the bank or mortgage company, then the

mortgage company allegedly creates money and therefore has gotten something for

nothing. OH YEAH? What happens when a check written on the allegedly created

money account is presented to the bank for payment? The bank must reduce its inventory

of FRNS by enough to redeem the check - so the bank didnt get something for nothing

after all. Proponents of this false theory maintain that the banks are still stealing, because

they get to buy money from the Federal Reserve System at the cost of printing the

money. OH YEAH? Your investigation will show that member banks borrow FRNS

from the Federal Reserve System at the discount rate. There is a problem with our

banking system, but the argument that the bank or mortgage company never loaned you

anything, stole your property, and fat cats like some Rockefellers are getting richer is

erroneous! My theory: To some extent, and perhaps to a great extent, banks are

operating ultra vires , and whether a result of poor management or greed, are forwarding

the original notes to the Federal Reserve to collateralize loans. While only a theory, this

reasoning provides opportunity for what we are really after - REMEDY!

TO COMPLETE FORECLOSURE, IS THE ORIGINAL NOTE REQUIRED?

YOU BE THE JUDGE


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Where the complaining party cannot prove the existence of the note, then there is

no note. To recover on a promissory note, the plaintiff must prove: (1) the existence of

the note in question; (2) that the party sued signed the note; (3) that the plaintiff is the

owner or holder of the note; and (4) that a certain balance is due and owing on the note.

See In Re: SMS Financial LLc. v. Abco Homes, Inc ., No. 98-50117, February 18, 1999

(5th Circuit Court of Appeals). Volume 29 of the New Jersey Practice Series, Chapter 10

Section 123, page 566, emphatically states, ... and no part payments should be made on

the bond or note unless the person to whom payment is made is able to produce the bond

or note and the part payments are endorsed thereon. It would seem that the mortgagor

would normally have a Common law right to demand production or surrender of the bond

or note and mortgage, as the case may be. See Restatement, Contracts S 170(3), (4)

(1932); C.J.S. Mortgages S 469 in Carnegie Bank v. Shalleck, 256 N.J. Super 23 (App.Div 1992), the Appellate Division held, When the underlying mortgage is evidenced by

an instrument meeting the criteria for negotiability set forth in N.J.S. 12A:3-104, the

holder of the instrument shall be afforded all the rights and protections provided a holder

in due course pursuant to N.J.S. 12A:3-302." Since no one is able to produce the

instrument, there is no competent evidence before the Court that any party is the holder

of the alleged note or the true holder in due course. New Jersey common law dictates

that the plaintiff prove the existence of the alleged note in question, prove that the party

sued signed the alleged note, prove that the plaintiff is the owner and holder of the

alleged note, and prove that certain balance is due and owing on any alleged note.

Federal Circuit Courts have ruled that the only way to prove the perfection of any

security is by actual possession of the security. See Matter of Staff Mortg. & Inv. Corp.,

550 F.2d 1228 (9 th Cir 1977), Under the Uniform Commercial Code, the only notice

sufficient to inform all interested parties that a security interest in instruments has been

perfected is actual possession by the secured party, his agent or bailee. Bankruptcy

Courts have followed the Uniform Commercial Code. In Re Investors & Lenders, Ltd.,

165 B.R. 389 (Bkrtcy.D.N.J.1994), Under the New Jersey Uniform Commercial Code

(NJUCC), promissory note is instrument, security interest in which must be perfected

by possession ... Unequivocally, the Courts rule is that in order to prove the

instrument, possession is mandatory.


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ARE ALL CONTRACTS ASSIGNABLE? WHAT ABOUT CONTRACTS THAT

DIE WITH THE INDIVIDUAL OR GO TO A QUESTION OF THE CREDIT

OF THE PARTIES? YOU BE THE JUDGE.

As a general rule, all contracts are assignable. . . An exception to this rule is that a

contract that relies on the personal trust, confidence, skill, character or { credit } of the

parties, may not be assigned without the consent of the parties . See Crim Truck &

Tractor Co. v. Navistar Intl, 823 S.W.2d 591, 596 (Tex. 1992). See also Southern

Community Gas Co. v. Houston Natural Gas Corp., 197 S.W. 2d 488, 489-90

(Tex.Civ.App. - San Antonio 1946, writ refd n.r.e.), and Moore v. Mohon, 514 S.W. 2d

508, 513 (Tex.Civ.App. - Waco 1974, no writ). Most rights under contracts areassignable, 2 R.C.L. 598. The exception is where rights are coupled with liabilities, with

contracts for personal services or with contracts involving personal confidence. Fire

insurance contracts are within the class last mentioned, and are held not to be assignable

because of the confidence reposed by the insurer in the owner of the property. Thus, the

owner may not sell the property and transfer the policy to the purchaser along with the

title; for the insurer has not agreed to insure the property in the hands of the purchaser,

nor to assume the hazard involved in his ownership and possession. On the other hand,

an assignment, not of the policy itself with its obligations, but of the owner's rights

thereunder by way of pledge or otherwise as security for a debt, is held valid, in the

absence of express restriction to the contrary; and the reason for this distinction is that

such pledge or assignment does not affect the personal relationship, i.e., the ownership of

the property by the insured, upon the faith of which the policy has been issued. Cooley's

Briefs on Insurance (2d Ed.) Vol. 2, pp. 1768, 1769; Ellis v. Kreutzinger, 27 Mo. 311, 72

Am.Dec. 270; True v. Manhattan Fire Ins. Co. (C.C.), 26 F. 83; Stokes v. Liverpool &

London & Globe Ins. Co., 130 S.C. 521, 126 S.E. 649. Such rights could only have

arisen in Deutsche from a direct guaranty made by the Mauricios to Deutsche, or by

assignment from someone to whom a guaranty had been made that was legally

assignable . There is no claim of a direct guaranty to Deutsche, so any rights it had could

only have arisen from a legally valid assignment by Centron or Security Marine of the


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Mauricios' guaranties to them. The district court concluded that such rights had been

validly assigned. We disagree. Under Maryland law, neither of the assignments made by

Centron to Deutsche in respect of Chesapeake's indebtednesses was effective to assign

any guaranty rights against the Mauricios respecting the note secured by the fifty-foot

yacht. Whether a particular assignment is effective to assign a guaranty respecting a

particular debt depends on two things: (1) whether the assignment in terms covers the

guaranty, and (2) whether the guaranty is a legally assignable one. Deutsche relies on

two assignments as the source of its right to recover from the Mauricios as guarantors of

the note securing the fifty-foot yacht: (1) Centron's July 31, 1990 assignment to

Deutsche, and (2) Centron's October 1, 1990 assignment to Deutsche simultaneously with

Security Marine's assignment to Centron, of their respective "rights, titles, and interests"

in Chesapeake's indebtednesses. Looking first to Centron's July 31, 1990 assignment, weconclude that, even if it could be interpreted as intended to include the Mauricio guaranty

to Centron, the guaranty was not legally assignable . While, as indicated in Part II.A., an

assignment of debt carries with it an assignment of any guaranty of that debt, this does

not mean that a guaranty may be assigned independently of any underlying debt. The

general rule is, in fact, to the contrary where the guaranty is "special," i.e., made only to

particular potential lender or lenders. As expressed in black-letter form: If a guaranty

covers future credit which is to be extended by a specific individual, it may not be

transferred to another person so as to enable him to become the creditor who is secured

by the guaranty, 38 Am. Jur. 2d Guaranty 35. The Centron guaranty is such an

instrument. It specifies that it is made "to induce. . . Centron Financial Services, Inc., to

make loans and in consideration of loans heretofore and hereafter made by [Centron] to

Chesapeake," JA 36. Further, it promises "prompt and punctual payment. . . of any and

all present and future indebtedness. . . of [Chesapeake] to you," i.e., Centron. Id.

(emphasis added). The guaranty does contemplate that once Centron extended credit to

Chesapeake, Centron might assign the debt, for the guaranty was for payment to Centron,

"its successors and assigns." Id. The guaranty nowhere includes, however, a promise to

pay debts arising between Chesapeake and anyone other than Centron. Under the general

rule, therefore, the Centron guaranty, covering only credit extended by Centron, could

not be assigned by Centron so as to enable Deutsche to become a creditor secured by the


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guaranty. We are satisfied that Maryland courts would so hold, though on a basis more

explanatory of the actual reason for non-assignability of guaranties independently of

consummated debt. Maryland law properly treats guaranties of future debt as simply a

species of "continuing" or "standing" offers to make a series of individual, unilateral

contracts . See Weil v. Free State Oil Co., 200 Md. 62, 87 A.2d 826, 830 (Md. 1956).

Under general contract law principles, such offers are accepted by the extension of credit

by the offeree. See id. ("to be accepted from time to time by [ credit extension]"). See

generally Restatement (Second) of Contracts 31, cmt. b (1981) ("continuing guaranty"

constitutes a "standard example of a divisible offer to make a series of contracts "). And,

until such a continuing offer is accepted, it remains only an offer of contract which, as

with contract offers in general, is not assignable . See Routzahn v. Cromer, 220 Md. 65,

150 A.2d 912, 915 (Md. 1959) ("an offer made to one person cannot be accepted byanother"); Restatement (Second) of Contracts 52 ("an offer can be accepted only by a

person whom it invites to furnish consideration"); 38 Am. Jur. 2d Guaranty 35 ("offer

of guaranty is, in and of itself, not assignable ").

A note void in the hands of the payee, because obtained by him of the maker by

fraud, is collectible in the hands of a subsequent bona fide holder who has taken it before

maturity for value; but if such holder has paid on such transfer a less sum than the but if such holder has paid on such transfer a less sum than the

amount of the note, he can only recover the amount which he, or some prior holder amount of the note , he can only recover the amount which he, or some prior holder

through whom he derives title, has paid for it.through whom he derives title, has paid for it. HOLCOMB v. WYCKOFF . 1870 WL

5231 (N.J. Sup.).

PHONE SCRIPTS TO USE WITH THIRD PARTY COLLECTORS

Commentary on the morality of debt: We believe that if we owe, we should repay. The

fallacy is that we rarely owe when a collector calls. The following phone scripts are

not mean spirited when we realize that the caller is trying to get us to pay money that


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we dont owe!

In spite of caller ID or other screening, if a collector calls you:

Thank you for calling. May I have your full name please? Thank you. Please spell your

full name for me. Now, (their name

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